Supreme Court, Nepal

The Supreme Court of Nepal is the highest court in Nepal and the final authority to interpret and apply the constitution and laws of the country. The Supreme Court also has the power to review and overturn the decisions of lower courts and other branches of government, and to protect and enforce the fundamental rights and freedoms of the people. The Supreme Court plays a vital role in maintaining the rule of law, ensuring justice, and upholding democracy in Nepal. In this article, we will explore the history, composition, jurisdiction, procedure, and functions of the Supreme Court of Nepal.

History of the Supreme Court of Nepal

The history of the Supreme Court of Nepal can be traced back to the ancient times, when there were various types of courts and judicial bodies in different kingdoms and regions of Nepal. Some of these courts and judicial bodies were:

• The Raj Sabha or Royal Council, which was the highest court and advisory body of the king. It consisted of senior ministers, nobles, priests, and scholars. It heard and decided cases involving royal prerogatives, state affairs, religious matters, etc.
• The Nyaya Panch or Judicial Council, which was a court of five judges appointed by the king. It heard and decided cases involving civil and criminal matters, such as property disputes, contracts, debts, thefts, murders, etc.
• The Adalat or Court, which was a local court established by the king or his representative in each district or village. It heard and decided cases involving minor civil and criminal matters, such as personal injuries, trespasses, nuisances, etc.

The modern history of the Supreme Court of Nepal began with the establishment of the Muluki Ain or National Code in 1854 by Jung Bahadur Rana, the first Prime Minister of Nepal. The Muluki Ain introduced a uniform legal system in Nepal and abolished the traditional caste-based laws. The Muluki Ain also established a three-tiered judicial system consisting of:

• The Mukhya Adalat or Chief Court, which was the highest court in Nepal. It consisted of five judges appointed by the Prime Minister. It heard and decided appeals from lower courts on civil and criminal matters.
• The Madhyama Adalat or Intermediate Court, which was a regional court established in each province. It consisted of three judges appointed by the Prime Minister. It heard and decided original cases on civil and criminal matters.
• The Upa Adalat or Subordinate Court, which was a local court established in each district. It consisted of one judge appointed by the Prime Minister. It heard and decided original cases on minor civil and criminal matters.

The Muluki Ain was revised several times in 1910, 1936, 1952, 1963, and 2017 to incorporate changes in the legal system and society of Nepal.

The current Supreme Court of Nepal was established by the Interim Constitution of Nepal 1951 after the end of the Rana regime and the restoration of democracy in Nepal. The Interim Constitution provided for a Supreme Court consisting of a Chief Justice and four other Justices appointed by the King on the recommendation of the Prime Minister. The Interim Constitution also provided for a High Court consisting of a Chief Judge and two other Judges appointed by the King on the recommendation of the Prime Minister, and a District Court consisting of a Judge appointed by the King on the recommendation of the Prime Minister, in each district. The Interim Constitution also gave the Supreme Court the power to interpret the constitution and laws, and to issue writs for the enforcement of fundamental rights.

The Interim Constitution was replaced by several constitutions in 1959, 1962, 1990, 2007, and 2015, which made some changes in the structure, composition, jurisdiction, procedure, and functions of the Supreme Court. The current constitution is the Constitution of Nepal, 2015, which came into force on September 20, 2015, after the end of the decade-long civil war and the abolition of monarchy in Nepal. The Constitution of Nepal, 2015, provides for a federal democratic republic system in Nepal, with three branches of government: the executive, the legislature, and the judiciary.

Composition of the Supreme Court of Nepal

The Constitution of Nepal, 2015 provides for a Supreme Court consisting of a Chief Justice and twenty other Justices appointed by the President on the recommendation of the Constitutional Council and the Judicial Council respectively. The Constitutional Council consists of six members: the Prime Minister as chairperson; the Chief Justice; the Speaker; the Chairperson of National Assembly; Leader of Opposition; Deputy Speaker as members. The Constitutional Council recommends candidates for appointment as Chief Justice from among those who have served as Justices of the Supreme Court for at least three years. The Judicial Council consists of five members: the Chief Justice as chairperson; the Minister of Law, Justice and Parliamentary Affairs; the senior-most Justice of the Supreme Court; a senior advocate or a distinguished jurist appointed by the President on the recommendation of the Nepal Bar Association; and a senior advocate or a distinguished jurist appointed by the President on the recommendation of the Prime Minister as members. The Judicial Council recommends candidates for appointment as Justices of the Supreme Court from among those who have served as Chief Judges or Judges of High Courts for at least five years, or have obtained a bachelor's degree in law and practiced law as a senior advocate or an advocate for at least fifteen years, or are distinguished jurists having worked for at least fifteen years in the judicial or legal field, or have served in the post of Gazetted first class or a higher post of the Judicial Service for at least twelve years.

The term of office of the Chief Justice is six years from the date of appointment. The term of office of other Justices is until they attain the age of sixty-five years. The Chief Justice and other Justices may resign from office at any time by submitting resignation to the President. The Chief Justice and other Justices may be removed from office by an impeachment motion passed by a two-thirds majority of the House of Representatives on the ground of incompetence, misconduct, failure to discharge duties honestly, or physical or mental incapacity.

Jurisdiction of the Supreme Court of Nepal

The Constitution of Nepal, 2015 provides for both appellate and original jurisdiction of the Supreme Court over various types of cases. The appellate jurisdiction means that the Supreme Court can hear and decide appeals from lower courts or other tribunals on questions of law or fact. The original jurisdiction means that the Supreme Court can hear and decide cases that are directly filed before it, without going through lower courts or other tribunals.

The appellate jurisdiction of the Supreme Court covers:

• Appeals from decisions of High Courts or other specialized courts or tribunals on constitutional matters, federal matters, civil matters, criminal matters, revenue matters, service matters, etc.
• Appeals from decisions of High Courts on writ petitions filed under Article 133 (1) (a) and (b) of the Constitution.
• Appeals from decisions of High Courts on cases involving interpretation of laws.

The original jurisdiction of the Supreme Court covers:

• Writ petitions filed under Article 133 (1) (c) and (d) of the Constitution for the enforcement of fundamental rights, or for any other purpose, as prescribed by law.
• Cases involving interpretation of the constitution, or any other matter of public importance, or any other matter, as prescribed by law.
• Cases involving disputes between federal units, or between federal units and federal government, or between federal government and provincial government, or between provincial governments, or between local governments, or between local governments and provincial government, or between local governments and federal government, as prescribed by law.
• Cases involving presidential reference under Article 151 (1) (a) and (b) of the Constitution.
• Cases involving election petitions under Article 245 (2) (a) and (b) of the Constitution.
• Cases involving impeachment petitions under Article 101 (6) (a) and (b) and Article 103 (6) (a) and (b) of the Constitution.
• Any other cases as prescribed by law.

Procedure of the Supreme Court of Nepal

The Constitution of Nepal, 2015 lays down some general principles and rules regarding the procedure of the Supreme Court. The specific rules and regulations regarding the procedure are prescribed by law or by rules made by the Supreme Court itself.

Some of the general principles and rules regarding the procedure are:

• The Supreme Court shall sit in panels or benches of two or more Justices as determined by it. The Chief Justice shall assign cases to different panels or benches. The Chief Justice may also convene a full court consisting of all Justices to hear and decide important or controversial cases.
• The Supreme Court shall conduct its proceedings in public, except when it decides otherwise in special circumstances. The Supreme Court shall publish its judgments, orders, decrees, rulings, opinions, etc., along with reasons thereof.
• The Supreme Court shall hear oral arguments from parties or their lawyers, as well as written submissions or briefs. The Supreme Court may also seek opinions from experts, amicus curiae (friends of the court), intervenors (third parties with an interest in the case), etc., as it deems necessary.
• The Supreme Court shall apply constitutional provisions, laws, precedents, general principles of justice, equity, good conscience, etc., while hearing and deciding cases. The Supreme Court shall also consider international treaties and conventions that are ratified by Nepal while interpreting laws.
• The Supreme Court shall have all necessary powers to do complete justice in any case before it. The Supreme Court may issue any order or direction that is necessary for securing the ends of justice. The Supreme Court may also review its own judgments, orders, decrees, rulings, opinions, etc., on its own motion or on an application made by any party within a reasonable time.

Functions of the Supreme Court of Nepal

The Constitution of Nepal, 2015 provides for various functions of the Supreme Court that are essential for the administration of justice and the protection of constitutionalism in Nepal. Some of these functions are:

• Interpretation: The Supreme Court interprets the meaning and scope of the constitution and laws of Nepal, and resolves any ambiguities, conflicts, or controversies that may arise from them. The Supreme Court also interprets international treaties and conventions that are ratified by Nepal, and harmonizes them with domestic laws.
• Application: The Supreme Court applies the constitution and laws of Nepal to specific cases and situations, and determines their validity, effectiveness, and consequences. The Supreme Court also applies general principles of justice, equity, and good conscience to supplement or fill in any gaps in the constitution and laws.
• Review: The Supreme Court reviews the decisions of lower courts and other tribunals, and corrects any errors, injustices, or irregularities that may have occurred in them. The Supreme Court also reviews the actions, policies, or legislation of other branches of government, and checks whether they are consistent with the constitution and laws of Nepal.
• Protection: The Supreme Court protects the fundamental rights and freedoms of the people, and ensures that they are not violated or infringed by any person or authority. The Supreme Court also protects the separation of powers and checks and balances among the different branches of government, and ensures that they do not encroach upon each other's domains or functions.
• Enforcement: The Supreme Court enforces its own judgments, orders, decrees, rulings, opinions, etc., and ensures that they are complied with by all concerned parties or authorities. The Supreme Court also enforces the constitution and laws of Nepal, and ensures that they are observed by all persons or entities.

Conclusion

The Supreme Court of Nepal is the highest court in Nepal and the final authority to interpret and apply the constitution and laws of the country. The Supreme Court also has the power to review and overturn the decisions of lower courts and other branches of government, and to protect and enforce the fundamental rights and freedoms of the people. The Supreme Court plays a vital role in maintaining the rule of law, ensuring justice, and upholding democracy in Nepal. The Supreme Court consists of a Chief Justice and twenty other Justices appointed by the President on the recommendation of the Constitutional Council and the Judicial Council respectively. The Supreme Court has both appellate and original jurisdiction over various types of cases. The Supreme Court follows its own rules and procedures for hearing and deciding cases. The Supreme Court performs various functions that are essential for the administration of justice and the protection of constitutionalism in Nepal.